Legislature(2003 - 2004)
02/20/2004 03:35 PM Senate RES
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SJR 26-APPEAL WILDERNESS SOCIETY V U.S. F.&W.
CHAIR SCOTT OGAN called the Senate Resources Standing Committee
meeting to order at 3:35 p.m. Present were Senators Thomas
Wagoner, Ben Stevens, Fred Dyson, Ralph Seekins, Kim Elton and
Chair Scott Ogan. Senator Georgianna Lincoln was excused. The
first order of business to come before the committee was SJR 26.
MS. AMY SEITZ, Staff to Senator Wagoner, sponsor of SJR 26, said
the resolution requests the Department of Interior and the
Department of Justice to appeal the decision the Ninth Circuit
Court made on December 30 saying that the Tustumena Lake Salmon
Enhancement Project was in violation of the 1964 Wilderness Act.
The enhancement project started 30 years ago as a research
project conducted by the Alaska Department of Fish and Game
(ADF&G). In 1993, it was turned over to the Cook Inlet
Aquaculture Association (CIAA), a non-profit, that takes eggs
from salmon returning to Tustumena Lake and incubates them at
the Trail Lakes Hatchery at Moose Pass. In early spring of every
year, the salmon fry are returned to Tustumena Lake to follow
the rest of their regular cycle in Cook Inlet. The project has
been jointly assessed a number of times by the CIAA and the U.S.
Fish and Wildlife Service. The Wilderness Act Consistency Review
found that the project doesn't conflict with the 1964 Wilderness
Act since it's not a commercial enterprise. A District Court
decision also stated the project is not a commercial enterprise
and does not conflict with the 1964 Wilderness Act. However, the
Ninth Circuit Court, on December 30, reversed the decision of
the District Court saying the project does violate the
Wilderness Act by being a commercial enterprise and offends its
mandate to preserve the natural conditions that are a part of
the wilderness character of the Kenai wilderness. SJR 26
requests that decision be appealed so the enhancement project
can continue. It also asks the Department of Interior and the
Department of Justice to request a temporary stay of the
decision so the 6 million hatchery fry are not terminated.
CHAIR OGAN asked where the hatchery is located.
MS. SEITZ replied in Moose Pass.
CHAIR OGAN pondered aloud the concept of hatchery fish swimming
in the river violating the wilderness quality of the area. "Am I
missing something here?"
MS. SEITZ nodded agreement.
SENATOR THOMAS WAGONER corrected him saying that the fish are
swimming in a lake, not a river. He explained that basically, if
the 6 million fry can't be put back into the system from which
they came or another lake isn't found to put them in, a lot of
money and fry would be wasted.
CHAIR OGAN groaned, "I'm sorry, the Ninth Circuit drives me
nuts, sometimes. You can put that on the record."
SENATOR RALPH SEEKINS asked if Tustumena Lake was withdrawn by
the federal government prior to statehood.
MS. SEITZ replied that it would have been made a refuge in 1964.
SENATOR SEEKINS said:
As I understand the Equal Footing Doctrine, Submerged
Lands Act, unless it was reserved prior to statehood,
that's a state navigable waterway and not subject to
federal jurisdiction. Under the Submerged Lands Act,
it would be subject to state management. I don't
understand how the federal government with an act that
came into play after statehood has somehow or another
changed the nature, the management structure, of a
state-owned navigable waterway.
CHAIR OGAN responded, "Possibly by asserting the Reserved Water
Rights Doctrine...that's probably a question to ask the
attorneys."
SENATOR WAGONER maintained that the area was withdrawn before
statehood and was known as the Kenai Moose Range. The Range was
a federal reserve dedicated to the continuation of the species
of the Kenai moose. He didn't know how that would mesh with the
state's navigable water issues.
SENATOR SEEKINS asked if the waterways were withdrawn when the
Kenai Moose Range was established.
MR. RON SOMERVILLE, Resources Consultant, House and Senate
Majority, affirmed that the Kenai Moose Range was created prior
to statehood, but added that litigation in the Ninth Circuit
Court still occurs over whether or not those pre-statehood
withdrawals included tide and submerged lands. The Ninth Circuit
has said unless Congress makes it very clear that it is
withdrawing something when a state becomes a state, transfer of
submerged lands to the state is precluded - and this is one of
those areas.
The Ninth Circuit has been all over the wall with us
when it comes to the state's rights.
There are two things. One is the Wilderness Area was
created in 1980, actually, when ANILCA passed, which
included the Tustumena - was part of that Wilderness
Act. It's also one of those areas like the boundary
waters where, in fact, the federal government
exercises the authority given to them by Congress -
the agency does - to regulate activities on state
navigable waters, because they own the adjacent lands.
I mean that's what the federal agencies are claiming
in these cases. That's apparently what the Ninth
Circuit kind of leaned on to.... They are saying that
the Wilderness Act, itself, has a provision that says
if [tide and submerged lands] become part of the
Wilderness Act System, which was created in 1964, that
it precludes commercial activities, except for certain
recreational and other activities that are exempted.
SENATOR SEEKINS related that the Utah case said withdrawals have
to be very clear.
MR. SOMERVILLE agreed and surmised that since this area was a
pre-statehood withdrawal, federal agencies and courts have
liberally interpreted their authority to manage lands that are
adjacent to theirs when they, in fact, may only own the
submerged lands, which haven't been litigated.
CHAIR OGAN said that the Anchorage Daily News reported that this
particular lawsuit was brought by the Wilderness Society and the
Alaska Center for the Environment.
SENATOR KIM ELTON asked if the appeal needs to be filed in a
certain timeframe and is that a concern.
SENATOR WAGONER reminded the committee that one of the critical
times is the smolt release.
I think it's going to be done. The problem is that the
State of Alaska doesn't have the authority to do it;
we had to have a federal official file the appeal.
CHAIR OGAN wistfully jested, "You're welcome to stick them in
Big Lake."
SENATOR ELTON pointed out the date of the decision was December
30, 2003 and asked when the smolts are to be put into the lake.
SENATOR WAGONER replied that the date isn't critical, but if the
fry can't be put in Tustumena Lake, permits for other lakes
would be needed from ADF&G. "You can't just take salmon smolt
out and dump them in any lake." An appeal can be filed up to 90
days from the date of the decision.
SENATOR ELTON asked, "Aren't there genetic requirements? You
can't just take those smolt and dump them into another system,
can you?"
SENATOR WAGONER replied that ADF&G has to permit another system
in which to release the smolt.
SENATOR SEEKINS asked what this decision would do to ecotourism
and commercial activities other than fishing.
MR. SOMERVILLE reiterated that the Wilderness Act does have an
exemption for recreational activities and the argument could be
made that salmon enhancement is not commercial. He noted that
Bill Horn, attorney for the majority, expressed his concern
that the courts didn't clearly indicate whether commercial
activities relate to commercial fishing only or to projects like
this. Mr. Horn maintains that the recreational exemption needed
to be clarified or commercial activities like ecotourism and
guiding could be illegal.
SENATOR WAGONER said it is estimated that the 6 million salmon
fry will return 100,000 fish to be used by all groups.
This isn't a commercial enterprise; this is done by
Cook Inlet Aquaculture as an enhancement. Those fish
come through the gillnet system, set nets, and drift
gillnets. They come into a personal use net fishery in
the mouth of the Kasilof River for personal use,
sometimes a dip net fishery; in addition to that,
there's a sport fishery. It's becoming a very viable
sport fishery. So, it's a multiple use and as much a
recreational use as it is a commercial use. That's the
way that aquaculture basically operates. They're
funded 100 percent by commercial funds, but at the
same time - I can't totally speak for the aquaculture
association, but I was one of the original board
members founding it - and at that time our philosophy
was, 'If we can't bring the fish through the
commercial area and into sports fishing areas, then it
wasn't a project that we really wanted to spend a lot
of time and effort on.' And that's pretty well the way
that Cook Inlet has gone, if you look at all the
projects Cook Inlet does....
CHAIR OGAN said he wanted to move this bill as quickly as
possible so that he could tell the Energy Council it is a
priority issue.
3:55 p.m.
MR. SOMERVILLE summarized that quite a bit has been going on
including a request from the Speaker of the House and President
of the Senate to Secretary Norton and Attorney General Ashcroft
asking them to appeal this case. Governor Murkowski, Attorney
General Renkes and other aquaculture associations have requested
an appeal, as well. The initial reaction from the Department of
Interior is that this one issue is no big deal and only applies
to one lake in Alaska. However, Mr. Somerville noted an e-mail
from another state saying the Ninth Circuit interpretation could
be a problem for it, as well.
CHAIR OGAN asked how the salmon fry are released.
SENATOR WAGONER explained that the fry are transported by truck
to the lake, taken on a boat away from the mouth of the lake and
released. Predation by trout would be pretty horrendous if the
fry were released near the mouth.
MR. WAYNE REGELIN, Deputy Commissioner, Department of Fish and
Game (ADF&G), said the administration supports the resolution.
He had some language suggestions that would make it more
accurate and powerful. He said that actually this issue has gone
to the Ninth Circuit two times. The first time, a three-judge
panel upheld the District Court ruling, which was appealed to an
en banc group [the entire group] of 11 judges who overturned it.
He thought the committee might want to insert a new whereas
clause stating that and that the first decision was made by a
vote of two to one and the last decision was made by an en banc
vote of 11 to zero.
Part of the reason was they never took up ANILCA (the
Alaska Native Interest Land Claims Settlement Act). I
think this 11-judge panel totally ignored all of the
provisions of ANILCA that allow preexisting uses to
continue - and I think that you might want to put in
on page 2, line 20, something about that.... But the
court ruled that the stocking program didn't
compromise the wilderness values that they prohibited
[if] it was commercial. The commercial activity occurs
way down stream off of the wilderness area.
He suggested making the first resolve clause on page 2 a little
more general than just appeal to the Supreme Court. He felt that
the Department of Justice did not want to take this issue to the
Supreme Court, although taking the same issue back to the Ninth
Circuit would be unusual after 11 judges ruled against it. He
reiterated that the court totally ignored all the provisions and
protections that ANILCA offered in 1980.
MR. REGELIN updated the committee that The Wilderness Society
has decided it doesn't want to be blamed for killing 6 million
fish and has asked for a meeting with the Fish and Wildlife
Service and other people to see if the smolt can be put back
into Tustumena Lake one more time. He thought the Fish and
Wildlife Service would probably do that.
But we don't want this to be just a one-time thing
about 6 million fish; we want the whole thing fixed,
because it's a very onerous decision, we feel....
Secretary of Interior Norton has never been the
problem. She has agreed with us from the very
beginning. It's the Solicitor General that is
reluctant to do this and his staff, because they don't
feel it's a broad enough case for them to appeal to
the Supreme Court.
MR. REGELIN offered the committee a few wording changes for
their review.
CHAIR OGAN asked him to read the changes into the record.
MR. REGELIN began by suggesting the following conceptual
amendments:
1) Add a new whereas clause on page 1, line 14, that would
say, "Whereas a three-judge panel of the Ninth Circuit
affirmed the decision of the District Court"
2) Insert "eleven-person panel" on page 1, line 14
3) Insert "the Ninth Circuit concluded that the stocking of
salmon fry did not compromise wilderness values, yet they
ruled to prohibit the action on page 2, line 20
4) Insert "or to the full panel of the Supreme Court" after
"Ninth Circuit" on page 2, line 30
CHAIR OGAN asked if the Department of Law had a position on the
proposed amendments.
MR. REGELIN replied that he hadn't had time to do that, but he
had been working with them since this situation began and didn't
think any of the legal issues had changed.
MR. TED POPELY, Counsel for the Majority, suggested rephrasing
the first resolve clause on page 2, line 30, [Mr. Regelin's item
4] to say:
Be it resolved that the Alaska State Legislature
respectfully requests that the Department of the
Interior and the United States Department of Justice
appeal the decision of the U.S. Court of Appeals,
Ninth Circuit in The Wilderness Society case to an
appropriate judicial body.
SENATOR SEEKINS asked if copies of the resolution should also be
sent to members of the Ninth Circuit (page 3).
MR. POPELY opined that he didn't know if they would accept it
and it certainly would not become a part of the record on an
appeal and he thought it would probably be returned to the
Legislature.
SENATOR SEEKINS pointed out that the opinion was written by
Ronald M. Gould and wondered if he was related to Rowan Gould,
Regional Director, U.S. Fish and Wildlife Service who received a
copy of The Wilderness Society's memorandum.
SENATOR ELTON asked if the 6 million salmon fry could be
released in any other lake.
MR. REGELIN replied that there may be other places, but the
analysis hasn't been finished, yet. Now that The Wilderness
Society has backtracked, he didn't think it was a problem.
SENATOR BEN STEVENS noted that a letter, dated February 18, from
The Wilderness Society said a meeting was scheduled between Cook
Inlet Aquaculture Association and the U.S. Fish and Wildlife
Service and asked if it had taken place.
MR. REGELIN said he didn't know.
SENATOR WAGONER moved to adopt Mr. Regelin's conceptual
amendments as amended by Mr. Popely. There were no objections
and it was so ordered.
CHAIR OGAN said he would make sure the committee got to look at
the draft before it moved out.
MR. JOHN FRENCH, Seward resident, said he is a former professor
with the University of Alaska, School of Fisheries. He is now a
self-employed toxicologist and represents the City of Seward on
the CIAA Board. He supported SJR 26.
The problem usually has not been the U.S. Fish and
Wildlife Service. They have been permitting this
release for a good number of years when they had
jurisdiction. I think, from our point of view, and
perhaps from the most onerous point of view throughout
the nation, is the fact that the Circuit Court is
defining it as a commercial operation. Cook Inlet
Aquaculture Association is chartered as a non-profit
under state statute. I'm not a commercial fisherman.
One of the things I've been very impressed with since
being on the board, which is since 1998, is the number
of non-commercial fisheries related projects that Cook
Inlet Aquaculture Association does. The bulk of the
Cook Inlet Aquaculture Association money does, indeed,
come from the Salmon Enhancement Tax and, therefore,
from commercial fishermen. There is certainly a
significant portion that comes from other [indisc.]
such as the contract with the Seward Chamber of
Commerce and the silvers that were put in Resurrection
Bay and the more recent release over in Kachemak Bay
that was paid for by the City of Homer, as I
understand. It's clear that all the fish that go back
into the Tustumena system - we are very careful with
the fish that are released back into the wild are done
in a manner that is consistent with good ecological
risk management principles and maintaining the genetic
stock. Tustumena fish go back into Tustumena....
It was mentioned to put Tustumena stock fish elsewhere
will require an additional permitting process. The
Department of Fish and Game could probably process it.
Whether we could handle 6 million fish elsewhere -
that's a different question. But, the really key issue
is that the Tustumena Lake system is one of the most
productive systems that [is] being enhanced in the
Cook Inlet area. It's important not just to commercial
fisheries, but to personal use sports fisheries and
subsistence fisheries. Everybody uses these salmon....
It's very hard for us to understand why the Circuit
Court chose to rule this as a commercial operation. It
has also been pointed out earlier [that] all the
commercial take of these fish occurs after they have
not only left the wilderness area, but they've gone
out to sea and come back again....
MR. DREW SPARLIN, CIAA, said the board had a meeting this
morning and Gary Fandrei, Executive Director, CIAA, wrote a
letter [in their packets]. He endorsed the previous speakers'
comments and added:
The Tustumena Lake Salmon Enhancement Project has been
in continuous operation since 1974. It was developed
and managed first by the Alaska Department of Fish and
Game and is now managed by Cook Inlet Aquaculture
Association. For over 29 years, this well designed
project has provided fish for sport and personal use,
subsistence and commercial fisheries in the heart of
Alaska's Cook Inlet fisheries. It has evolved into a
model of hatchery supported enhancement projects
throughout Cook Inlet and the rest of the state.
Cook Inlet Aquaculture Association is not just a
commercial operation. We're formed under Alaska
Statute 16.10.380 as a qualified non-profit regional
association that includes all user groups
representative of local communities. The only user
group that is being restricted from the fish being
produced in the Cook Inlet Aquaculture Association is
the commercial fishery. It's open to users of all
other uses.
All fish that are released in Tustumena Lake are
screened for disease prior to release. Another point
is that all fish in Tustumena Lake are marked. CIAA
annually monitors Tustumena Lake tributaries to assess
the impact of the spawning populations. All fish that
are released in Tustumena Lake are incubated at Trail
Lakes Hatchery and the hatchery rearing is minimal.
CHAIR OGAN asked him if he knew who the executive director of
The Wilderness Society is.
MR. SPARLIN replied that he didn't.
CHAIR OGAN said he thought it was Nicole Whittington Evans and
intimated that her husband is one of his most outspoken critics.
MR. PAUL SHADURA, Kenai Peninsula Fisherman's Association
(KPFA), noted that the state constitution allows for the
promotion of fish development and aquaculture within the state.
In 2002, 1.4 billion fry were released and 26 million fish were
harvested in common property fisheries. CIAA provides benefits
for commercial, sports, personal use and subsistence fisheries.
In 2002, 22 percent of the common property sockeye salmon caught
in Cook Inlet commercial salmon fisheries originated in the Cook
Inlet Hatchery with an estimated value of $2 million to $3
million. KPFA is predominately comprised of set netters and many
of their fishing families would be affected. "A 22 percent
reduction would be extremely painful and deleterious to the
economies and the local [indisc.] communities...."
He explained that the Wilderness Act contains special provisions
that allow exemptions for certain activities to be conducted.
Congress has allowed cattle ranching, mining, oil exploration,
water rights, corridors for utilities, towers, etc. "So there
are some commercial activities, but they are let under special
provisioning."
MR. SHADURA pointed out that section 7 of the Submerged Water
Act says, "Nothing in this act shall constitute an expressed or
implied claim or denial on the part of the federal government as
to its fish and except for state water laws."
He also pointed out that the Alaska National Interest Lands
Conservation Act (ANILCA), Title XIII [Aquaculture Section],
says:
In accordance with the goal of restoring and
maintaining fish production in the State of Alaska to
optimum sustained yield levels and in a manner which
adequately assures protection, preservation,
enhancement and rehabilitation of the wilderness
resource, the Secretary of the Agriculture may permit
fishery research, management, enhancement, and
rehabilitation activities within national forest
wilderness and national forest wilderness study areas
designated by this Act. Subject to reasonable
regulations, permanent improvements and facilities
such as fishways, fish weirs, fish ladders, fish
hatcheries, spawning channels, stream clearance, egg
planting....' etc. As long as these activities are
reasonable....
He said the National Aquaculture Act of 1980 authorizes
development of a national plan for aquaculture and establishes
the Department of Agriculture as the lead federal agency for
coordination and dissemination of national aquaculture permit
information. [END OF SIDE A]
TAPE 04-12, SIDE B
4:25
MR. SHADURA also quoted a 1956 act that predated the Wilderness
Act, which said:
Congress declares that the fish, shellfish and
wildlife resource of the nation make a material
contribution to our national economy and food source
supply to the health, recreation and wellbeing of our
citizens....
MR. ROLAND MAW, United Cook Inlet Drift Association, agreed with
previous testimony. He said that the 6 million fry produce about
100,000 fish that return to the Kasilof River in early May and
continue through late August. During that time, the subsistence
fishery, the dip net fishery and the commercial gillnet fishery
work on them. However, his point is that the period of time the
commercial fishermen are on the fish is less than half the time
they are available to all citizens of the state.
MR. KEN DUCKETT, Executive Director, United Southeast Alaska
Gillnetters Association (USAG), supported SJR 26. He pointed out
that activities in wilderness areas are coming under more and
more attack. Fishing rights have been lost in Glacier Bay
National Park and now there's this situation with enhancement. A
number of fishing areas are immediately adjacent to wilderness
areas and this is a trend that needs to be stopped.
SENATOR WAGONER moved to pass CSSJR 26 (RES) from committee with
attached fiscal note and individual recommendations. There were
no objections and it was so ordered.
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